Exhibit
10.1


 


DOT HILL SYSTEMS CORP.


 


2000 AMENDED AND RESTATED EMPLOYEE
STOCK PURCHASE PLAN


 


Adopted by the Board of Directors on
March 9, 2000


Approved by Stockholders on May 8,
2000


Amendment and Restatement Adopted by
Board on February 2, 2004


Amendment and Restatement Approved by
Stockholders on [May 4], 2004


Effective Date: February 2, 2004


Termination Date: [May 4], 2014


 


1.                                      PURPOSE.


 


(a)                                  The
purpose of this 2000 Amended and Restated Employee Stock Purchase Plan (the “Plan”) is to provide
a means by which employees of DOT HILL SYSTEMS CORP., a Delaware
corporation (the “Company”),
and its Affiliates, as defined in subparagraph 1(c), which are designated as
provided in subparagraph 2(b), may be given an opportunity to purchase stock of
the Company.


 


(b)                                  This
Plan hereby amends and restates the Company’s 1997 Employee Stock Purchase Plan
(the “Former Plan”),
and the stock awards granted under the Former Plan shall be governed by the
provisions of this Plan; provided, however, that (i) to the extent
necessary to preserve the tax treatment of the stock awards granted under the
Former Plan, as provided under the Code (defined below in subparagraph 1(c)),
this Plan shall not amend or modify said outstanding stock awards grants; and
(ii) outstanding stock awards granted under the Former Plan shall receive the
same benefits, subject to clause (i) of this proviso, but not the disadvantages
(if any) under this Plan.


 


(c)                                  The
word “Affiliate”
as used in the Plan means any parent corporation or subsidiary corporation of
the Company, as those terms are defined in Sections 424(e) and (f),
respectively, of the Internal Revenue Code of 1986, as amended (the “Code”).


 


(d)                                  The
Company, by means of the Plan, seeks to retain the services of its employees,
to secure and retain the services of new employees, and to provide incentives
for such persons to exert maximum efforts for the success of the Company.


 


(e)                                  The
Company intends that the rights to purchase stock of the Company granted under
the Plan be considered options issued under an “employee stock purchase plan”
as that term is defined in Section 423(b) of the Code.


 


2.                                      ADMINISTRATION.


 


(a)                                  The
Plan shall be administered by the Board of Directors of the Company (the “Board”) unless and
until the Board delegates administration to a Committee, as provided in
subparagraph 2(c).  Whether or not the
Board has delegated administration, the Board shall have the final power to
determine all questions of policy and expediency that may arise in the
administration of the Plan.


 


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(b)                                  The
Board shall have the power, subject to, and within the limitations of, the
express provisions of the Plan:


 


(1)                                 To
determine when and how rights to purchase stock of the Company shall be granted
and the provisions of each offering of such rights (which need not be
identical).


 


(2)                                 To
designate from time to time which Affiliates of the Company shall be eligible
to participate in the Plan.


 


(3)                                 To
construe and interpret the Plan and rights granted under it, and to establish,
amend and revoke rules and regulations for its administration.  The Board, in the exercise of this power,
may correct any defect, omission or inconsistency in the Plan, in a manner and
to the extent it shall deem necessary or expedient to make the Plan fully
effective.


 


(4)                                 To
amend the Plan as provided in paragraph 13.


 


(5)                                 Generally,
to exercise such powers and to perform such acts as the Board deems necessary
or expedient to promote the best interests of the Company and its Affiliates.


 


(c)                                  The
Board may delegate administration of the Plan to a Committee composed of not
fewer than two (2) members of the Board (the “Committee”). 
If administration is delegated to a Committee, the Committee shall have,
in connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board.  The Board may abolish the
Committee at any time and revest in the Board the administration of the Plan.


 


(d)                                  Any
interpretation of the Plan by the Board of any decision made by it under the
Plan shall be final and binding on all persons.


 


3.                                      SHARES
SUBJECT TO THE PLAN.


 


(a)                                  Subject
to the provisions of paragraph 12 relating to adjustments upon changes in
stock, the stock that may be sold pursuant to rights granted under the Plan
shall not exceed in the aggregate two million (2,000,000) shares of the
Company’s common stock (the “Common Stock”) (of which seven hundred fifty thousand
(750,000) shares were initially reserved upon adoption of the Plan, three
hundred thousand (300,000) shares were additionally reserved pursuant to
automatic annual increases upon the Company’s 2001, 2002 and 2003 annual
meetings of stockholders pursuant to this Section 3(a), and nine hundred
fifty thousand (950,000) shares were additionally reserved upon the amendment
and restatement of the plan on February 2, 2004 (subject to stockholder
approval) and of which 1,050,000 shares have been issued as of February 2,
2004) plus an annual increase to be added on the day of each Annual
Stockholders’ Meeting beginning with the Annual Stockholders’ Meeting in 2005,
equal to the lesser of (i) 100,000 shares, or (ii) an amount determined by the Board.  If any right granted under the Plan shall
for any reason


 


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terminate without
having been exercised, the Common Stock not purchased under such right shall
again become available for the Plan.


 


(b)                                  The
stock subject to the Plan may be unissued shares or reacquired shares, bought
on the market or otherwise.


 


4.                                      GRANT
OF RIGHTS; OFFERING.


 


(a)                                  The
Board or the Committee may from time to time grant or provide for the grant of
rights to purchase Common Stock of the Company under the Plan to eligible
employees (an “Offering”)
on a date or dates (the “Offering Date(s)”) selected by the Board or the
Committee.  Each Offering shall be in
such form and shall contain such terms and conditions as the Board or the
Committee shall deem appropriate, which shall comply with the requirements of
Section 423(b)(5) of the Code that all employees granted rights to
purchase stock under the Plan shall have the same rights and privileges.  The provisions of separate Offerings need
not be identical, but each Offering shall include (through incorporation of the
provisions of this Plan by reference in the Offering or otherwise) the period
during which the Offering shall be effective, which period shall not exceed
twenty-seven (27) months beginning with the Offering Date, and the substance of
the provisions contained in paragraphs 5 through 8, inclusive.


 


(b)                                  If
an employee has more than one right outstanding under the Plan, unless he or
she otherwise indicates in agreements or notices delivered hereunder:  (1) each agreement or notice delivered
by that employee will be deemed to apply to all of his or her rights under the
Plan, and (2) a right with a lower exercise price (or an earlier-granted
right, if two rights have identical exercise prices), will be exercised to the
fullest possible extent before a right with a higher exercise price (or a
later-granted right, if two rights have identical exercise prices) will be
exercised.


 


5.                                      ELIGIBILITY.


 


(a)                                  Rights
may be granted only to employees of the Company or, as the Board or the
Committee may designate as provided in subparagraph 2(b), to employees of any
Affiliate of the Company.  Except as
provided in subparagraph 5(b), an employee of the Company or any Affiliate
shall not be eligible to be granted rights under the Plan, unless, on the
Offering Date, such employee is in the employ of the Company and has been in
the employ of the Company or any Affiliate for such continuous period preceding
such grant as the Board or the Committee may require, but in no event shall the
required period of continuous employment be greater than two (2) years.  In addition, unless otherwise determined by
the Board or the Committee and set forth in the terms of the applicable
Offering, no employee of the Company or any Affiliate shall be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee’s
customary employment with the Company or such Affiliate is for at least twenty
(20) hours per week and at least three (3) months per calendar year.


 


(b)                                  Each
person who, during the course of an Offering, first becomes an eligible
employee of the Company or designated Affiliate shall not then be eligible to
be granted rights under such Offering.


 


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(c)                                  No
employee shall be eligible for the grant of any rights under the Plan if,
immediately after any such rights are granted, such employee owns stock
possessing five percent (5%) or more of the total combined voting power or
value of all classes of stock of the Company or of any Affiliate.  For purposes of this subparagraph 5(c), the
rules of Section 424(d) of the Code shall apply in determining the stock
ownership of any employee, and stock which such employee may purchase under all
outstanding rights and options shall be treated as stock owned by such
employee.


 


(d)                                  An
eligible employee may be granted rights under the Plan only if such rights,
together with any other rights granted under “employee stock purchase plans” of
the Company and any Affiliates, as specified by Section 423(b)(8) of the
Code, do not permit such employee’s rights to purchase stock of the Company or
any Affiliate to accrue at a rate which exceeds twenty-five thousand dollars
($25,000) of fair market value of such stock (determined at the time such
rights are granted) for each calendar year in which such rights are outstanding
at any time.


 


(e)                                  Officers
of the Company and any designated Affiliate shall be eligible to participate in
Offerings under the Plan, provided, however, that the Board may
provide in an Offering that certain employees who are highly compensated
employees within the meaning of Section 423(b)(4)(D) of the Code shall not
be eligible to participate.


 


6.                                      RIGHTS;
PURCHASE PRICE.


 


(a)                                  On
each Offering Date, each eligible employee, pursuant to an Offering made under
the Plan, shall be granted the right to purchase up to the number of shares of
Common Stock of the Company purchasable with a percentage designated by the
Board or the Committee not exceeding fifteen percent (15%) of such employee’s
Earnings (as defined in subparagraph 7(a)) during the period which begins on
the Offering Date (or such later date as the Board or the Committee determines
for a particular Offering) and ends on the date stated in the Offering, which
date shall be no later than the end of the Offering.  The Board or the Committee shall establish one or more dates
during an Offering (the “Purchase Date(s)”) on which rights granted under the
Plan shall be exercised and purchases of Common Stock effected in accordance
with such Offering.


 


(b)                                  In
connection with each Offering made under this Plan, the Board or the Committee
shall specify a maximum number of shares which may be purchased by any employee
as well as a maximum aggregate number of shares which may be purchased by all
eligible employees pursuant to such Offering. 
In addition, in connection with each Offering which contains more than
one Purchase Date, the Board or the Committee may specify a maximum aggregate
number of shares which may be purchased by all eligible employees on any given
Purchase Date under the Offering.  If
the aggregate purchase of shares upon exercise of rights granted under the
Offering would exceed any such maximum aggregate number, the Board or the
Committee shall make a pro rata allocation of the shares available in as nearly
a uniform manner as shall be practicable and as it shall deem to be equitable.


 


(c)                                  The
purchase price of stock acquired pursuant to rights granted under the Plan
shall be not less than the lesser of:


 


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(1)                                 an
amount equal to eighty-five percent (85%) of the fair market value of the stock
on the Offering Date; or


 


(2)                                 an
amount equal to eighty-five percent (85%) of the fair market value of the stock
on the Purchase Date.


 


7.                                      PARTICIPATION;
WITHDRAWAL; TERMINATION.


 


(a)                                  An
eligible employee may become a participant in the Plan pursuant to an Offering
by delivering a participation agreement to the Company within the time
specified in the Offering, in such form as the Company provides; provided,
however, that an eligible employee shall be entitled to participate
in no more than one (1) Offering at any time. 
Each such agreement shall authorize payroll deductions of up to the
maximum percentage specified by the Board or the Committee of such employee’s
Earnings during the Offering.  “Earnings” is defined
as an employee’s base salary or wages (including amounts thereof elected to be
deferred by the employee, that would otherwise have been paid, under any cash
or deferred arrangement established by the Company), which shall include
overtime pay, but shall exclude commissions, bonuses, incentive pay, profit
sharing, other remuneration paid directly to the employee, the cost of employee
benefits paid for by the Company or an Affiliate, education or tuition
reimbursements, imputed income arising under any group insurance or benefit
program, traveling expenses, business and moving expense reimbursements, income
received in connection with stock options, contributions made by the Company or
an Affiliate under any employee benefit plan, and similar items of
compensation.  The payroll deductions
made for each participant shall be credited to an account for such participant
under the Plan and shall be deposited with the general funds of the Company or
an Affiliate.  A participant may reduce
(including to zero) or increase such payroll deductions after the beginning of
any Offering only as provided for in the Offering.  A participant may not make additional payments into his or her
account.


 


(b)                                  At
any time during an Offering, a participant may terminate his or her payroll
deductions under the Plan and withdraw from the Offering by delivering to the
Company a notice of withdrawal in such form as the Company provides.  Such withdrawal may be elected at any time
prior to the end of the Offering except as provided by the Board or the
Committee in the Offering.  Upon such
withdrawal from the Offering by a participant, the Company shall distribute to
such participant all of his or her accumulated payroll deductions (reduced to
the extent, if any, such deductions have been used to acquire stock for the
participant) under the Offering, without interest, and such participant’s
interest in that Offering shall be automatically terminated.  A participant’s withdrawal from an Offering
will have no effect upon such participant’s eligibility to participate in any
other Offerings under the Plan but such participant will be required to deliver
a new participation agreement in order to participate in subsequent Offerings
under the Plan.  A reduction of payroll
deductions to zero shall not, by itself, constitute a withdrawal from an
Offering.


 


(c)                                  Rights
granted pursuant to any Offering under the Plan shall terminate immediately
upon cessation of any participating employee’s employment with the Company and
any designated Affiliate, for any reason, and the Company shall distribute to
such terminated employee all of his or her accumulated payroll deductions
(reduced to the extent, if any, such


 


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deductions have
been used to acquire stock for the terminated employee), under the Offering,
without interest.


 


(d)                                  Rights
granted under the Plan shall not be transferable, and, except as provided in
paragraph 14, shall be exercisable only by the person to whom such rights are
granted.


 


8.                                      EXERCISE.


 


(a)                                  On
each Purchase Date specified in the relevant Offering, each participant’s
accumulated payroll deductions (without any increase for interest) will be
applied to the purchase of whole shares of stock of the Company, up to the
maximum number of shares permitted pursuant to the terms of the Plan and the
applicable Offering, at the purchase price specified in the Offering.  No fractional shares shall be issued upon
the exercise of rights granted under the Plan. 
The amount, if any, of accumulated payroll deductions remaining in each
participant’s account after the purchase of shares on the final Purchase Date
of an Offering shall be distributed to the participant after such final
Purchase Date, without interest.


 


(b)                                  No
rights granted under the Plan may be exercised to any extent unless the Plan
(including rights granted thereunder) is covered by an effective registration
statement pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and
the Plan is in material compliance with all applicable state, foreign and other
securities and other laws applicable to the Plan.  If on a Purchase Date in any Offering hereunder the Plan is not
so registered, no rights granted under the Plan or any Offering shall be
exercised on such Purchase Date, and the Purchase Date shall be delayed until
the Plan is subject to such an effective registration statement and in such
compliance, except that the Purchase Date shall not be delayed more than twelve
(12) months and the Purchase Date shall in no event be more than twenty-seven
(27) months from the Offering Date.  If
on the Purchase Date of any Offering hereunder, as delayed to the maximum
extent permissible, the Plan is not registered and in such compliance, no
rights granted under the Plan or any Offering shall be exercised and all
payroll deductions accumulated during the Offering (reduced to the extent, if
any, such deductions have been used to acquire stock) shall be distributed to
the participants, without interest.


 


9.                                      COVENANTS
OF THE COMPANY.


 


(a)                                  During
the terms of the rights granted under the Plan, the Company shall keep
available at all times the number of shares of stock required to satisfy such
rights.


 


(b)                                  The
Company shall seek to obtain from each regulatory commission or agency having
jurisdiction over the Plan such authority as may be required to issue and sell
shares of stock upon exercise of the rights granted under the Plan.  If, after reasonable efforts, the Company is
unable to obtain from any such regulatory commission or agency the authority
which counsel for the Company deems necessary for the lawful issuance and sale
of stock under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such rights unless and until
such authority is obtained.


 


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10.                               USE
OF PROCEEDS FROM STOCK.


 


Proceeds from the sale of stock pursuant to rights granted under the
Plan shall constitute general funds of the Company.


 


11.                               RIGHTS
AS A STOCKHOLDER.


 


A participant shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any shares subject to rights granted
under the Plan unless and until the participant’s stockholdings acquired upon
exercise of rights under the Plan are recorded in the books of the Company.


 


12.                               ADJUSTMENTS
UPON CHANGES IN STOCK.


 


(a)                                  If
any change is made in the stock subject to the Plan, or subject to any rights
granted under the Plan (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or otherwise), the Plan and outstanding rights will be
appropriately adjusted in the class(es) and maximum number of shares subject to
the Plan and the class(es) and number of shares and price per share of stock
subject to outstanding rights.


 


(b)                                  In
the event of:  (1) a dissolution or
liquidation of the Company; (2) a merger or consolidation in which the
Company is not the surviving corporation; (3) a reverse merger in which
the Company is the surviving corporation but the shares of the Company’s Common
Stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise; or (4) any other capital reorganization, in which more than
fifty percent (50%) of the shares of the Company entitled to vote are
exchanged, then, as determined by the Board in its sole discretion (i) any
surviving corporation may assume outstanding rights or substitute similar
rights for those under the Plan, (ii) such rights may continue in full
force and effect, or (iii) participants’ accumulated payroll deductions
may be used to purchase Common Stock immediately prior to the transaction
described above and the participants’ rights under the ongoing Offering
terminates.


 


13.                               AMENDMENT
OF THE PLAN.


 


(a)                                  The
Board at any time, and from time to time, may amend the Plan.  However, except as provided in
paragraph 12 relating to adjustments upon changes in stock, no amendment
shall be effective unless approved by the stockholders of the Company within
twelve (12) months before or after the adoption of the amendment, where the
amendment will:


 


(1)                                 Increase
the number of shares reserved for rights under the Plan;


 


(2)                                 Modify
the provisions as to eligibility for participation in the Plan (to the extent
such modification requires stockholder approval in order for the Plan to obtain
employee stock purchase plan treatment under Section 423 of the Code or to
comply with the requirements of Rule 16b-3


 


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promulgated under the
Securities Exchange Act of 1934, as amended (“Rule 16b-3”)); or


 


(3)                                 Modify
the Plan in any other way if such modification requires stockholder approval in
order for the Plan to obtain employee stock purchase plan treatment under Section 423
of the Code or to comply with the requirements of Rule 16b-3.


 


It is expressly
contemplated that the Board may amend the Plan in any respect the Board deems
necessary or advisable to provide eligible employees with the maximum benefits
provided or to be provided under the provisions of the Code and the regulations
promulgated thereunder relating to employee stock purchase plans and/or to
bring the Plan and/or rights granted under it into compliance therewith.


 


(b)                                  Rights
and obligations under any rights granted before amendment of the Plan shall not
be impaired by any amendment of the Plan, except with the consent of the person
to whom such rights were granted or except as necessary to comply with any laws
or governmental regulation.


 


14.                               DESIGNATION
OF BENEFICIARY.


 


(a)                                  A
participant may file a written designation of a beneficiary who is to receive
any shares and cash, if any, from the participant’s account under the Plan in
the event of such participant’s death subsequent to the end of an Offering but
prior to delivery to him of such shares and cash.  In addition, a participant may file a written designation of a
beneficiary who is to receive any cash from the participant’s account under the
Plan in the event of such participant’s death during an Offering.


 


(b)                                  Such
designation of beneficiary may be changed by the participant at any time by
written notice.  In the event of the
death of a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant’s death, the
Company shall deliver such shares and/or cash to the executor or administrator
of the estate of the participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its discretion,
may deliver such shares and/or cash to the spouse or to any one or more
dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.


 


15.                               TERMINATION
OR SUSPENSION OF THE PLAN.


 


(a)                                  The
Board may suspend or terminate the Plan at any time.  Unless sooner terminated, the Plan shall terminate on the day
before the tenth (10th) anniversary of the date the Plan is adopted
by the Board or approved by the stockholders of the Company, whichever is
earlier.  No rights may be granted under
the Plan while the Plan is suspended or after it is terminated.


 


(b)                                  Rights
and obligations under any rights granted while the Plan is in effect shall not
be impaired by suspension or termination of the Plan, except as expressly
provided in the


 


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Plan or with the
consent of the person to whom such rights were granted or except as necessary
to comply with any laws or governmental regulation.


 


16.                               EFFECTIVE
DATE OF PLAN.


 


The Plan shall become effective on the date that the Plan is adopted by
the Board, but no rights granted under the Plan shall be exercised unless and
until the Plan has been approved by the stockholders of the Company, which
approval shall be within twelve (12) months before or after the date the Plan
is adopted by the Board.


 


17.                               CHOICE
OF LAW.


 


All questions concerning the construction, validity and interpretation
of this Plan shall be governed by the law of the State of California, without
regard to such state’s conflict of laws rules.


 


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